New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2004-032-067, Claim No. 108674, Motion Nos. M-68404, M-68478, M-68479


Synopsis


Claimant's motion to treat the notice of intention as a claim for assault and battery is denied as being time barred, and his motion to treat the notice of intention as a negligence claim is denied as the notice fails to give sufficient facts regarding any negligence. Defendant's motion to dismiss the claim as being untimely is granted, and claimant's motion for the assignment of counsel is denied as moot. Claim dismissed.


Case Information

UID:
2004-032-067
Claimant(s):
TIMOTHY WILLIAMS
Claimant short name:
WILLIAMS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108674
Motion number(s):
M-68404, M-68478, M-68479
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Timothy Williams, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Kathleen M. Resnick Arnold, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
September 20, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On May 16, 2002, claimant was allegedly assaulted by two correction officers while an inmate at Clinton Correctional Facility ("Clinton"). According to the notice of intention to file a claim served on the Attorney General on August 9, 2002, claimant was slammed into hallway walls, "kneed" in the ribs, punched in the head and stomach, and thrown down stairs. On December 19, 2003, and on January 26, 2004, respectively, claimant filed and served on the Attorney General a claim in which he alleged a cause of action for breach of a duty to protect claimant from an attack by correctional officers, a cause of action for inadequate medical care, and a cause of action for negligent failure to chastise the officers who allegedly assaulted claimant. The claim also implies a cause of action for assault and battery.[1]

There are currently three motions before the Court: claimant's motion no. M-68479 to proceed as a poor person pursuant to CPLR 1101 and for the assignment of counsel; claimant's motion no. M-68404 to treat the notice of intention as a claim; and defendant's motion no. M-68478 to dismiss the claim. These motions will be addressed seriatim.

The Court will initially address claimant's motion no. M-68404 pursuant to Court of Claims Act § 10 (8) for permission to treat the notice of intention as a claim. Section 10 (8) permits the Court to treat a notice of intention as a claim under proper circumstances. The Court, however, "shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act § 10 (8). The notice of intention herein describes intentional torts allegedly committed by correction officers against the claimant on May 16, 2002. The applicable time limitations period is one year from the cause of action's date of accrual (see, CPLR 215 [3]). Because claimant's time to commence an action for the intentional torts of assault and battery expired on May 16, 2003, one year after it occurred, his application to treat the notice of intention as a claim is time barred (see, Court of Claims Act § 10 (8); Maendel v State of New York, 178 Misc 2d 297).

Claimant also alleges that he has asserted in his notice of intention sufficient facts to state a claim for negligence. In fact, however, there is nothing in the notice of intention that even suggests claimant was contemplating a negligence or a malpractice cause of action against the State. In fact, the words "negligence" or "malpractice" are nowhere contained in the notice of intention, and the claimant does not describe therein any alleged negligence or medical neglect or allude to any acts of negligence, medical or otherwise, that allegedly caused him injury. Because the notice of intention fails to "contain facts sufficient to constitute a claim" (Court of Claims Act § 10 [8] [a]) for negligence, the Court may not deem it a claim (see, e.g., Bonaparte v State of New York, 175 AD2d 683 [4th Dept 1991]; Artale v State of New York, 140 AD2d 919 [3d Dept 1988]; Patterson v State of New York, 54 AD2d 147 [4th Dept 1976], affd 45 NY2d 885 [1978]). Claimant's motion for permission to treat the notice of intention as a claim is denied.

The Court next considers defendant's motion to dismiss the claim pursuant to CPLR Rule 3211 (a)(2), (5), (7) and (8), filed and served in lieu of an answer. Court of Claims Act § 10 (3-b) requires that claims based on intentional torts be commenced by the filing and service of a claim or by the service of a notice of intention on the Attorney General within 90 days of the date on which the claim arose. Claimant properly served a notice of intention alleging assault and battery on August 9, 2002, within 90 days of May 16, 2002, the date on which the assault and battery allegedly occurred. If a notice of intention is served, then the claimant has to file and serve the claim "within one year after the accrual of such claim" (see, Court of Claims Act § 10 (3-b). In other words, claimant had until May 16, 2003 to file and serve a claim based on intentional torts. The claim was filed in December of 2003 and served in January of 2004, more than one and one- half years after the claim arose, and is thus untimely.

The claim also asserts three new and separate causes of action for breach of duty, inadequate medical care and failure to chastise, all of which allegedly occurred on May 16, 2002, concurrent with or immediately after the alleged acts of assault and battery. Pursuant to Court of Claims Act § 10 (3), claimant had to file and serve a claim or serve a notice of intention to file a claim within 90 days of the date on which the claim arose, i.e., by August 14, 2002. As previously noted, none of these new causes of action were alleged in claimant's notice of intention and no claim was filed and served within the 90 day period. As a result, the remaining causes of action in claimant's claim are also dismissed as being untimely.[2]

By his remaining motion no. M-68479, claimant seeks leave to proceed as a poor person pursuant to CPLR 1101 and requests an assignment of counsel pursuant to CPLR 1102. The Court notes that claimant's motion for a reduction in the filing fee was previously denied by order of the Hon. Richard E. Sise on January 15, 2004, and the filing fee was paid by claimant on May 10, 2004. Claimant's remaining request for an assignment of counsel is denied as moot because the claim has been dismissed.

In summary: claimant's motion no. M-68404 for permission to treat the notice of intention as a claim is denied; defendant's motion no. M-68478 to dismiss is granted and the claim is dismissed; and claimant's motion no M-68479 to proceed as a poor person is denied and his request for an assignment of counsel is denied as moot.



September 20, 2004
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read and considered by the Court:

1. Notice of Motion No. M-68404 for permission to treat the notice of intention as a claim and supporting affirmation of Timothy Williams, pro se

2. Affirmation in Opposition of Kathleen M. Resnick Arnold, Esq., AAG, with annexed notice of intention

3. Notice of Motion No. M-68478 to dismiss the claim and Supporting Affirmation of Kathleen M. Resnick Arnold, Esq., AAG, with annexed exhibits

4. Affidavit in Opposition of Timothy Williams, pro se, with annexed exhibits

5. Affidavit for permission to proceed as a poor person and for assignment of counsel of Timothy Williams, pro se

Filed papers: claim




[1] The claim asserts three causes of action: breach of duty; inadequate medical care; and failure to chastise. While the claimant describes in great detail the alleged actions of the correction officers, he does not specifically allege a separate cause of action for assault and battery, although one can be inferred from the allegations in the claim.
[2] Pursuant to Court of Claims Act § 10 (6), a claimant who has failed to file and serve a claim or failed to serve a notice of intention based on alleged acts of negligence as set forth in § 10 (3) may, in the discretion of the Court, be permitted to file a late claim. Such permission must be sought by a separate motion, accompanied by a proposed claim and an affidavit or affidavits attesting to the merits of the proposed claim and discussing the other factors set forth in § 10 (6) which the Court must consider in determining whether to permit a late claim.